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Wills and Probate - From: 1970 To: 1979

This page lists 38 cases, and was prepared on 02 April 2018.

 
Re Leigh's Will Trusts; Handyside v Durbridge [1970] Ch 277; (2005) 19 Tru LI 109
1970
ChD
Buckley J
Wills and Probate
The testatrix's husband and only child had drowned in an accident. She was his administratrix and sole beneficiary under his intestacy. At his death, the husband had been the owner of 51% of the issued shares in a company and had been owed money by the company. The testatrix died not long after her husband, at a time when his estate had not been fully administered and when the shares in the company were still registered in her husband's name. By clause 3 of her will, the testatrix bequeathed to the defendant "all shares which I hold and any other interest or assets which I may have in Sheet Metal Prefabricators (Battersea) Limited". The executors of her will issued a summons to determine whether that specific bequest was valid or not. Held: A person absolutely entitled to a share of an unadministered estate "does have an interest of a kind" in the assets comprised in it.
1 Citers


 
Re Gregory (Deceased), Gregory v Goodenough [1970] 1 WLR 1455
1970
CA
Fenton Atkinson LJ
Wills and Probate
Fenton Atkinson LJ sought to discourage appeals in cases involvimg small estates.
1 Citers



 
 Gray v Barr; ChD 1970 - [1970] 2 QB 626

 
 In re Morris Deceased; ChD 1970 - [1971] P 62; [1970] 1 All ER 1057; [1970] 2 WLR 865

 
 Gray v Barr; CA 1971 - [1971] 2 QB 554

 
 In re Field; 1971 - [1971] 1 WLR 555
 
In re Horgan [1971] P 50
1971
ChD
Latey J
Wills and Probate, Legal Professions
The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors "who may act through any partner or partners of that firm or their successors in business at the date of my death not exceeding two in number to be the executors and trustees of this my will", but the firm not having a personality in law probate could not be granted probate to it.
Latey J said: "testators often want their solicitors to act as executors and, in case the individual solicitors they have in mind at the time of giving instructions pre-decease them, they want an appointment which will enable succeeding partners to act. Also they want such appointment to cover such contingencies as the sale of the practice or its amalgamation with another . .
The law does not permit the appointment as executor of a partnership firm as such. Where a will is so phrased as to purport to do this, the court construes it as appointing the individual partners as executor . .
Mr Bingham [for the Law Society] argued that prima facie it is wholly inappropriate to say: 'I appoint X, Y and Z and they can act through A, B and C.' But, he says, meaning can be given to it if one were to treat the firm as though it were a company and say 'I want the partners at the date of my death …' the natural construction of the clause as a whole is that the testator was contemplating and intending the appointment of all [the partners], a grant to two and power reserved to the others."
1 Citers


 
In Re Thurlow, Decd Riddick and Another v Kennard and Others
7 Jul 1971
ChD
Pennycuick VC
Wills and Probate
cw Will - Construction - "Descendants" - Residuary estate to be divided between descendants of late mother and of late father - Modern legal and ordinary meaning of "descendants" - Whether "descendants" include collateral relations
The will stated that the residuary estate should be divided between 'the descendants' of the deceased's late parents. How was the phrase to be interpreted? Only relations of the parents' brothers and sisters existed. Held: In modern society, the terms descendants must be taken to refer to the children of the person, and did not include collateral relations. The residuary estate passed as on intestacy.
1 Cites

[ lip ]
 
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
2 Sep 1971

Justice Windeyer
Wills and Probate, Constitutional
(Australia) The court was concerned to interpret the phrase "arising under any laws made by the Parliament"
Austlii Constitutional Law (Cth) - Privy Council - Appeal from State Supreme Court invested with federal jurisdiction - Matter arising under law made by Common- Commonwealth Parliament - Raised by defence - Whether court exercising concurrent State and federal jurisdiction - The Constitution (63 & 64 Vict. c. 12), s. 76 (ii.) - Judiciary Act 1901-1968 (Cth), ss. 39, 40.
Courts - Ouster of jurisdiction - Public policy - Proceedings for divorce - Agreement between husband and wife concerning maintenance - Whether invalid - Whether invalidity derived from common law or statute - Matrimonial Causes Act 1959-1966 (Cth).
Matrimonial Causes - Agreement between husband and wife concerning maintenance - Whether enforceable - Whether attempt to oust jurisdiction of court - Matrimonial Causes Act 1959-1966 (Cth), ss. 5, 8, 23 (2) (3), 87 (1) (k).
1 Citers

[ Austlii ]

 
 Re Colling Dec'd; 1972 - [1972] 3 All ER 729

 
 In re Giles Deceased; 1972 - [1972] Ch 554
 
Ottaway v Norman [1972] 1 Ch 698
1972
ChD
Brightman J
Trusts, Wills and Probate
Considering secret trusts and the doctrine of mutual wills, the Court held: "It will be convenient to call the person upon whom such a trust is imposed the 'primary donee' and the beneficiary under that trust the 'secondary donee.' The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiesence."
1 Citers


 
Re Recher's Will Trusts [1972] Ch 529
1972
ChD
Brightman J
Trusts, Wills and Probate
The deceased gave a share of the residue, to "The Anti-Vivisection Society, 76 Victoria Street, London S.W.1." She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the "London and Provincial Anti-Vivisection Society" had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as "The National Anti-Vivisection Society" of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to "The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society)." In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: "It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members' social club. … Such an association is bound … to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules … The resultant situation, on analysis, is that the … society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure ... Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the … society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process."
1 Cites

1 Citers


 
Schaefer v Schuman [1972] AC 572
1972
PC
Lord Simon of Glaisdale
Estoppel, Wills and Probate, Contract, Commonwealth
(New South Wales - Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.
1 Citers



 
 Dingle v Turner and Others; HL 16-Feb-1972 - [1972] 2 WLR 523; [1972] UKHL 2; [1972] AC 601
 
Falkiner and Another v The Commissioner of Stamp Duties [1972] UKPC 21; [1973] AC 565; [1973] STC 85; [1973] 1 All ER 598; [1972] TR 297; [1973] 2 WLR 334
7 Nov 1972
PC
Reid, Morris of Borth-y-Gest, Dilhorne, Simon of Glaisdale LL, Sir Richard Wild
Commonwealth, Wills and Probate, Trusts
New South Wales - The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of 'the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration Act 1898-1954 of the State of New South Wales'. There was a claim for death duties on the settled property, and one of the issues was whether the clause contained 'a trust . . . to take effect after [the deceased person's] death' within section 102(2)(a) of the Stamp Duties Act 1920-1959. Held: The next of kin were to be determined at the settlor's death, not at the date of the settlement, and death duties were payable accordingly.
1 Citers

[ Bailii ]
 
Re Fleming's Will Trusts [1974] 3 All ER 323
1974


Wills and Probate
By his Will made in 1969, the testator bequeathed to the first defendants his leasehold house at Narcissus Road. The house was than held under a lease term expiring on 28th September, 2008 subject to covenants to repair. In April 1971, the testator purchased the freehold and registered it. The leasehold interest was unregistered and the testator died in February, 1973. As a sole executor of the Will, the plaintiff applied for determination of interest that passed on to the 12 first defendants. The residuary beneficiaries under the Will claimed that the first defendants was only entitled to leasehold interest. Held: Repelling that contention, Templeman J, while delivering the judgment said: "In my judgment, a gift of property discloses an intention to give the estate and interest of the testator in that property at his death; a mere reference in the will to the estate and interest held by the testator at the date of his will is not sufficient to disclose a contrary intention. It follows that the freehold in the case passes to the first defendants."
1 Citers


 
Re Beadle [1974] 1 WLR 417
1974

Goff J
Wills and Probate
Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed or acknowledged his signature in their presence. The court rejected an argument that attestation was not a matter of intention.
1 Cites

1 Citers


 
Kenwood v Adams [1975] CLY 3591
1975

Templeman J
Wills and Probate
Templeman J set down the 'golden rule' that a lawyer should ensure that in the case of any doubt, a will should be witnessed or approved by a medical practitioner who had satisfied himself of the testator's capacity and understanding.
1 Citers


 
Horrocks and Another v Forray [1975] EWCA Civ 9; [1976] 1 All ER 737; [1976] 1 WLR 230
7 Nov 1975
CA

Land, Wills and Probate

[ Bailii ]
 
Kenward v Adams Times, 29 November 1975; [1975] CLY 3591
29 Nov 1975
ChD
Templeman J
Wills and Probate, Legal Professions
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed alterations should be discussed with the testator. It is prudent for legal advisors to seek the opinion of a medical practitioner (preferably one experienced in the field) and, if the practitioner is satisfied that the person does have the requisite capacity, he should act as one of the attesting witnesses.
1 Citers


 
Re Lipinski's Will Trusts [1976] Ch 235
1976
ChD
Oliver J
Wills and Probate, Trusts
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest was valid. Held: Whether a gift was treated as a purpose trust or an absolute gift to a unincorporated non-charitable body with a superadded direction, the gift was valid if the beneficiaries were ascertainable; that the specified purpose of the gift to the Hull Judeans was within the power of that association and its members were the ascertained or ascertainable beneficiaries, and were therefore the persons who were entitled to enforce that purpose, or notwithstanding the use of "solely", to vary that purpose. The association was not a charity.
Oliver J: "If the gift were to the association simpliciter, it would, I think, clearly fall within the second category of Cross J.'s categories. At first sight, however, there appears to be a difficulty in arguing that the gift is to members of the association subject to their contractual rights inter se when there is a specific direction or limitation sought to be imposed upon those contractual rights as to the manner in which the subject matter of the gift is to be dealt with . . .
There would seem to me to be, as a matter of common sense, a clear distinction between the case where a purpose is prescribed which is clearly intended for the benefit of ascertained or ascertainable beneficiaries, particularly where those beneficiaries have the power to make the capital their own, and the case where no beneficiary at all is intended (for instance, a memorial to a favourite pet) or where the beneficiaries are unascertainable … If a valid gift may be made to an unincorporated body as a simple accretion to the funds which are the subject matter of the contract which the members have made inter se - and Neville Estates Ltd. v. Madden [1962] Ch. 832 and In re Recher's Will Trusts [1972] Ch. 526 show that it may - I do not really see why such a gift, which specifies a purpose which is within the powers of the association and of which the members of the association are the beneficiaries, should fail. Why are not the beneficiaries able to enforce the trust or, indeed, in the exercise of their contractual rights, to terminate the trust for their own benefit? Where the donee association is itself the beneficiary of the prescribed purpose, there seems to me to be the strongest argument in common sense for saying that the gift should be construed as an absolute one within the second category - the more so where, if the purpose is carried out, the members can by appropriate action vest the resulting property in themselves, for here the trustees and the beneficiaries are the same persons.
Directly in point is the more recent decision of Goff J. in Re Denley's Trust Deed [1969] 1 Ch. 373 …Goff J held that the rule against enforceability of non-charitable 'purpose or object' trusts was confined to those which were abstract or impersonal in nature where there was no beneficiary or cestui que trust. A trust which, though expressed as a purpose, was directly or indirectly for the benefit of an individual or individuals was valid provided that those individuals were ascertainable at any one time and the trust was not otherwise void for uncertainty . . . I respectfully adopt this, as it seems to me to accord both with authority and common sense." and "This is a case in which, under the constitution of the association, the members could, by the appropriate majority, alter their constitution so as to provide, if they wished, for the division of the association's assets among themselves. This has, I think, a significance." Finally: ". . . whether one treats the gift as a 'purpose' trust or as an absolute gift with a superadded direction … all roads lead to the same conclusion."
1 Cites

1 Citers



 
 In re Reynette-James dec'd, Wightman v; ChD 1976 - [1976] 1 WLR 16; [1975] All ER 3 1037
 
The Commissioner of Stamp Duties v Bone and Others [1976] TR 117; [1976] 2 All ER 354; [1977] AC 511; [1976] UKPC 11; [1976] 2 WLR 968; [1976] STC 145
5 Apr 1976
PC
Lord Wilberforce, Viscount Dilhorne, Lord Cross of Chelsea, Lord Fraser of Tullybelton, Lord Russell of Killowen
Commonwealth, Wills and Probate
(Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the debtor is extinguished because an executor cannot sue himself.
1 Cites

[ Bailii ]
 
Paul v Constance [1976] EWCA Civ 2; [1977] 1 WLR 527
8 Jul 1976
CA
Scarman LJ
Trusts, Wills and Probate

1 Citers

[ Bailii ]
 
Conin; Re [1977] 2 All ER 720; [1979] Ch 16
1977

Walton J
Wills and Probate, Trusts
Walton J expressed serious doubts about the extension of the rule in Strong v Bird to an administrator. The appointment of a donee by a donor to be his executor is a personal act of choice by the donor. The effect of such act is to make it impossible for a donee, as executor, to sue himself. And that is consistent with the intention on the part of the donor to make a gift to the donee. The appointment of an administrator, on the other hand, is not the act or choice of the donor but of the law. And often it is a matter of pure chance which of the many persons who are entitled to a grant of letters of administration will be appointed as the administrator. I

 
In re Simpson Deceased; Schaniel and Another v Simpson and Others (1977) NLJ 487; (1997) SJ 121 224
1977
ChD
Templeman J
Wills and Probate, Legal Professions
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: "In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings."
1 Citers


 
Re Tuck's Settlement Trusts [1977] EWCA Civ 11; [1978] Ch 49; [1978] 1 All ER 1047; [1978] 2 WLR 411
1 Nov 1977
CA
Lord Denning MR Lord Russell of Killowen, Eveleigh LJ
Wills and Probate, Trusts
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community.
1 Cites

1 Citers

[ Bailii ]

 
 Maltby v D J Freeman; 1978 - [1978] 1 WLR 431
 
In Re Beaney deceased [1978] 1 WLR 770
1978
ChD
Martin Nourse QC
Wills and Probate
A gift made inter vivos by a mother of three children to one of them alone of the mother's only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee's siblings and the extent of the property to be disposed of had not been explained to the mother. The donor could not understand the relevant transaction and its effects without explanation. "Mother should have been in a condition to fully understand; (1), that she was disposing of her only asset of value and depriving herself of title to it; (2), that she was thereby pre-empting the provisions of her Will and, (3), that she was preferring one child and cutting out the others from all benefit." and
"The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of a gift are trivial in relation to the donor's other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor's only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all of the potential donees and the extent of the property to be disposed of."
1 Citers


 
Re Wilkinson, Neale v Newell [1978] Fam 22; [1978] 1 All ER 221
1978


Wills and Probate
Assistance given with light household duties was not 'full valuable consideration' within the Act. A sister could apply as a dependent.
Inheritance (Provision for Family and Dependants) Act 1975 1(3)

 
Osoba v Osoba and others [1979] 1 WLR 247; [1979] 2 All ER 393; [1978] EWCA Civ 3
31 Oct 1978
CA
Buckley, Goff, Eveleigh LJJ
Wills and Probate, Trusts
Appeal by the plaintiff from an order declaring upon the true construction of the will of Patrick Jacob Osoba deceased, and in the events which have happened, that the residue of the estate of the testator, situate in England, is held upon trust for the persons other than the testator's mother, named in clause 3 of the said will in equal shares absolutely. Held: there is a general rule that when one sees a gift of income without any gift over to a particular named person for a particular purpose, that ordinarily the purpose is a mere indication of motive and does not cut down the out and out gift.
[ Bailii ]
 
Re Moss, Larke v Nugus [2000] WTLR 1033; (1979) CA p337
1979
CA
Brandon LJ
Wills and Probate
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, "in favour of persons on whom the testatrix is dependent", and the executor, who was a solicitor who had been responsible for drawing up the will, had taken the bizarre view that the defendants were not entitled to a copy of it or to any explanation of the circumstances in which it had been drawn up. Held: The costs of a defendant who had unsuccessfully put in issue the question of knowledge and approval by the testator of a will were nevertheless left to come out of the estate.
Brandon LJ said: "Nevertheless, it is necessary to consider, not only the recommendation itself, but the principle upon which the recommendation is based, and the duty of a solicitor when faced with matters of this kind. The recommendation is no doubt of importance, but even if it had not been made certain principles would apply to the matter, and in my judgement the principle which applied is that, when there was litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will, as to how the will came to be made."
1 Citers


 
Re Christie (deceased) [1979] Ch 168; [1979] 1 All ER 546
1979

Mr Vivian Price QC
Wills and Probate
In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
Mr Vivian Price QC said: " "although reasonable financial provision means provision for the applicant's maintenance that did not imply the applicant had to prove that he was destitute or in financial difficulty. The word "maintenance" refers to no more and no less than the applicant's way of life and well-being, his health, financial security and allied matters such as the well-being, health, financial security of his immediate family for whom he is responsible."
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers



 
 Malone v Harrison; 1979 - [1979] 1 WLR 1353

 
 In re Coventry dec'd; ChD 2-Jan-1979 - [1979] 2 All ER 408; [1981] Ch 461

 
 In Re Coventry (deceased); CA 3-Jan-1979 - [1980] Ch 461; [1979] 3 All ER 815

 
 Marckx v Belgium; ECHR 13-Jun-1979 - 6833/74; (1979) 2 EHRR 330; [1979] ECHR 2
 
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